Gibbs Houston Pauw has filed an amicus brief in Kerry v. Din, a case pending before the U.S. Supreme Court, arguing that courts should be able to review and reverse arbitrary decisions made by consular officers to deny visas. This case addresses the doctrine of consular nonreviewability, the general rule accepted by some courts that the decisions made by consular officers – even totally arbitrary decisions – cannot be reviewed in any way by the courts. The amicus brief was filed on behalf of over 70 immigration law professors.

Fauzia Din is a U.S. citizen, married to a citizen of Afghanistan. Although USCIS granted the I-130 petition she filed for her husband, the US consulate in Afghanistan denied the visa. The only explanation for the denial was a reference to 8 U.S.C. §1182(a)(3)(B) (terrorist-related inadmissibility grounds), with no other explanation.

Her complaint in the federal district court was dismissed, but later reversed by the Ninth Circuit court of appeals. Din v. Kerry, 718 F.3d 856 (9th Cir. 2013). The Ninth Circuit held that a U.S. citizen has a protected Due Process interest in living with his or her non-citizen spouse, and when the consulate denies a visa to the non-citizen spouse the U.S. citizen has a right to receive an explanation for the denial.

The government’s appeal to the United States Supreme Court argues that (1) a U.S. citizen has no protectable interest in living in the United States with a non-citizen spouse; and (2) when the consulate denies a visa to the spouse of a U.S. citizen it does not have to provide any reason for denying the visa. The amicus brief argues that there should be at least limited judicial review to ensure that the decision of the consular officer is not totally arbitrary.

This case has the potential of being one of the most important cases addressing the rights of “mixed families” – families including U.S. citizens and non-U.S. citizens. A decision is expected by the end of June.